Indiana Supreme Court: No Right to Resist Unlawful Police Entry

[Crazed Rabbit]

If the police illegally enter your house in Indiana, you have no legal right to resist. If you try to stop them, you'll be beaten or killed and charged with various crimes if you live.

News article:
http://www.nwitimes.com/news/local/g...3df229697.html

Legal blog with link to actual ruling:
http://volokh.com/2011/05/13/no-righ...e-court-holds/

We believe . . . that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest— as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (“But in arrest situations that are often ripe for rapid escalation, one‘s ̳measured‘ response may fast become excessive.”

What recourse do they offer? Civil remedies; suing the city (since the cops are immune to lawsuits). So the cops can illegally enter your home, illegally beat you,

And isn't that public policy bit great? That's the important thing; public policy always overrides the constitution. Shouldn't it, after all?

And to resist an illegal invasion risks injury to the government agent breaking the constitution and the law! We can't have those brave criminals be at risk of injury! Time to trash the constitution!

The dissent (or part of it ):

[T]he common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on . . . the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

In Miller v. United States, 357 U.S. 301, 313–14 (1958) the United States Supreme Court held that it was unlawful to arrest the defendant on criminal charges when a warrantless arrest was conducted by police officers breaking and entering the defendant‘s apartment without expressly announcing the purpose of their presence or demanding admission. In recounting the historical perspective for its holding the Court quoted eighteenth century remarks attributed to William Pitt, Earl of Chatham, on the occasion of a debate in Parliament:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!

Id. at 307. The same is no less true today and applies equally to forces of the State.

At issue in this case is not whether [the defendant] had the right to resist unlawful police entry into his home – a proposition that the State does not even contest – but rather whether the entry was illegal in the first place, and if so, whether and to what extent Barnes could resist entry without committing a battery upon the officer. Federal Fourth Amendment jurisprudence is equal to the task of resolving these issues. In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances. And that their sole remedy is to seek refuge in the civil arena. I disagree and therefore respectfully dissent.

CR

[jabarto]

"police department internal review and disciplinary procedure"? So when the police break the law, my recall is to...go to the police?

[rory_20_uk]

It makes the discussion regarding the second amendment rather pointless doesn't it?

[econ21]

So when the police break the law, my recall is to...go to the police?

In the UK, we have an independent police complaints commission - do you have anything like that in the US?

[UglyJun]

ok for a few ruppees the cops go search next door :)

[Banquo's Ghost]

It makes the discussion regarding the second amendment rather pointless doesn't it?

Certainly, it makes the debate rather more interesting.

One of the key arguments advanced for the Second Amendment is that it reserves the right of citizens to protect themselves against oppressive government. I have remarked before that US citizens - contrary to their self-perception - appear to be amongst the most docile of peoples when it comes to accepting government injustice. Whilst some of the ethnic minorities occasionally riot, the majority of the population seem supine in the face of all sorts of government interference in their rights.

Now, this may well be attributable to a healthy democracy wherein most people feel sufficiently enfranchised to change things via the ballot box. But if the Second Amendment argument is to have validity, surely the correct response to Indiana's Supreme Court decision is for home-owners to gun down policemen the moment they step illegally on their porch? Let their case be made in court after the fact? Or is it being tacitly acknowledged that owning firearms is pointless when faced with the power of a state armed to the teeth?

[Louis VI the Fat]

Or, perhaps some of the enormous amount of energy devoted towards maintaining a certain interpretation of the Second Amendment is spend on discrediting the police force and justice system. You know, to buttress the thought that one needs to protect one's own. And that one can't trust Washington, or any government, with this.


Protests against police abuse is both a product of the progressive, civil liberties activism, and of the hardright, and / or Second Amendment activism.

[Xiahou]

But if the Second Amendment argument is to have validity, surely the correct response to Indiana's Supreme Court decision is for home-owners to gun down policemen the moment they step illegally on their porch? Let their case be made in court after the fact? Or is it being tacitly acknowledged that owning firearms is pointless when faced with the power of a state armed to the teeth?

Yes, that's the only logical conclusion a reasonable person could come to.

[Skullheadhq]

Yes, that's the only logical conclusion a reasonable person could come to.

I would want to see it happen, they can't do anything about it, you're just proctecting property, right America? :)

[Banquo's Ghost]

Yes, that's the only logical conclusion a reasonable person could come to.

You might notice the question marks. The use of this punctuation indicates an enquiry, not a conclusion.

I'm interested in people's views, that's all. Kinda why I read the Backroom.

[Slyspy]

And isn't that public policy bit great? That's the important thing; public policy always overrides the constitution. Shouldn't it, after all?

Although I have little concern with the subject matter I do believe that you are spinning it in your favour here, if you are basing this comment on the quote that you have posted. The line is clearly "that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence". The "and" is quite important I think.

[Crazed Rabbit]

In the UK, we have an independent police complaints commission - do you have anything like that in the US?

Ha! Of course not. It takes police officers killing old women, lying about it, planting drugs in the house of said deceased grandmother, and then being found out for a city to even considering giving any sort of civilian council even elementary powers to review police procedures (as happened in Atlanta a couple years back.). And even then the cops will fight it tooth and nail, both the creation of such a council, as well as it's continued existence. Even then it likely doesn't have the power

I have remarked before that US citizens - contrary to their self-perception - appear to be amongst the most docile of peoples when it comes to accepting government injustice.

Two things, I think; one, it isn't happening to them and such news as I post in the Police Abuses thread rarely makes the front page. Two; a lot of people support even abusive police, on the grounds that the kid who got his arm broken for low slung pants was a punk and disrespectful to police, or will eagerly support violations of their liberties in the name of safety.

Part of that is decades of conditioning that the government is right and should be respected at all times, that obeying them is the civilized thing to do, and that liberty should be balanced with safety - in a way that always slides towards more and more 'safety'.

Is the US more docile? I'm not sure that's the case.

Government control over our life shows no signs of slowing (the FBI wants to put GPS trackers on any (and when they have the tech, all) car(s) in America without warrant). The question is if people will reach a breaking point or if they'll just...keep...submitting...

CR

[Skullheadhq]

Government control over our life shows no signs of slowing (the FBI wants to put GPS trackers on any (and when they have the tech, all) car(s) in America without warrant). The question is if people will reach a breaking point or if they'll just...keep...submitting...

CR

Kilometerkastje, hè Frag?

[Furunculus]

In the UK, we have an independent police complaints commission - do you have anything like that in the US?

in the UK we now have as many as 1200 primary and secondary mechanisms by which the state can force entry to private property.

sadly, the englishmans castle is no longer, and it is in significant measure labours fault.

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!"

http://www.homeoffice.gov.uk/publica...reedoms-bill/#

[rory_20_uk]

The police only need a couple of them really - if they suspect a child is in danger they can break down the front door - no child? Oh, sorry - but we thought there might have been one...

Labour is of the overriding opinion that the State knows better than the individual. It is a shame that the ConDems do not appear to be rescinding any of them - few politicians will give up power, wherever it came from.

[Furunculus]

well, apparently they are getting rid of some:

powers of entry – there are some 1,200 separate powers of entry contained in a mix of primary and secondary legislation. The bill creates three order-making powers to: (1) enable a minister of the crown (or the Welsh ministers) to repeal unnecessary powers of entry and associated powers; (2) consolidate a group of existing powers; or (3) attach additional safeguards to the exercise of such powers, including in particular provision requiring prior authorisation by a magistrates’ court. Provisions are also made for a code of practice governing the exercise of powers of entry

but when there are 1200 it swiftly becomes a question of whether it will be enough to make a difference........

[Seamus Fermanagh]

Or, perhaps some of the enormous amount of energy devoted towards maintaining a certain interpretation of the Second Amendment is spend on discrediting the police force and justice system. You know, to buttress the thought that one needs to protect one's own. And that one can't trust Washington, or any government, with this....

Well, cher Louis, our higest court have already ruled that the police have no obligation to defend you and yours. Our 2nd ammendment "hawks" are not that off base regarding the need to protect one's own.

[PanzerJaeger]

Certainly, it makes the debate rather more interesting.

One of the key arguments advanced for the Second Amendment is that it reserves the right of citizens to protect themselves against oppressive government. I have remarked before that US citizens - contrary to their self-perception - appear to be amongst the most docile of peoples when it comes to accepting government injustice. Whilst some of the ethnic minorities occasionally riot, the majority of the population seem supine in the face of all sorts of government interference in their rights.

Now, this may well be attributable to a healthy democracy wherein most people feel sufficiently enfranchised to change things via the ballot box. But if the Second Amendment argument is to have validity, surely the correct response to Indiana's Supreme Court decision is for home-owners to gun down policemen the moment they step illegally on their porch? Let their case be made in court after the fact? Or is it being tacitly acknowledged that owning firearms is pointless when faced with the power of a state armed to the teeth?

I believe the thought process surrounding that aspect of the 2nd Amendment argument is focused more towards a subversion of the democratic process rather than individual resistance to the state, which can be expressed in any number of other ways (ballot, activism, ect.).

Libya is a interesting example of the kind of situation some gun rights activists envision. Had the population been better armed and more familiar with weaponry, the rebellion may not have crumbled and necessitated NATO assistance.

[Louis VI the Fat]

Well, cher Louis, our higest court have already ruled that the police have no obligation to defend you and yours. Our 2nd ammendment "hawks" are not that off base regarding the need to protect one's own.

See, this shows why Clinton was a great president, and Reagan a poor one. The Clinton judge gave preference to the obligation of the law to protect against domestic violence. The Reagan judge to limiting the role of the government.

It is a self-fullfilling process. The role of the government in law enforcement is reduced, structurally chiselled away by gun activists. Consequently, the need for private protection increases. With the government being more incapable of even fullfilling its most basic duty of protection, trust erodes further, so the role of government is reduced, etc.

It is the NRA which feeds public discourse with terminology such as 'jackbooted thugs', which draws attention to police brutality, to government incompetence in keeping its own in check. There is no dividing line, only a gradual escalation of rhetoric, between civic concern over police brutality, to NRA activism, to anti-government militias and terrorists. In America's hardright, everybody is just a law-abiding citizen, forever at risk from the real enemy, the jackbooted federal thugs with a badge.

Me, I'm allergic to authority and have issues with the abuse of power. It is a progressive, liberal concern. There is a large overlap in that with the right, which is great. But also, sadly, an overlap which is slightly less palatabe, namely with the hardright, extremism, gun activism.

'I don't feel good: I'm ready to kill a police officer! I can say it' - that's the echo of the hardright's escalated rhetoric, as parroted by the mentally instable, just before they go on a shooting rampage against congresswomen or others connected with the federal government or law enforcement.

[Crazed Rabbit]

Louis, maybe you could show me where American cops are referred to as 'jackbooted thugs' by the NRA.

CR

[Louis VI the Fat]

Louis, maybe you could show me where American cops are referred to as 'jackbooted thugs' by the NRA.

CR

Not an off-hand remark said in a heated debate. But a quite deliberatly chosen phrasing, in line with the NRA's policy to escalate political rhetoric with the goal of thereby shifting the entire political discourse to the right, to an anti-government stance, and pro private gun ownership.

http://www.nytimes.com/2000/03/20/us...president.html

Gov. George W. Bush of Texas, the Republican presidential candidate, also has urged the N.R.A. to engage in more civil discourse. Five years ago, Mr. Bush's father, former President Bush, resigned from the gun organization after Mr. LaPierre signed a fund-raising letter that referred to federal agents as ''jackbooted government thugs,'' a comment for which he later apologized.

[PanzerJaeger]

Sigh...

Louis is using one fundraising letter printed in 1995... yes, 1995... and later recanted to support his long debunked Gabby Giffords position.

And yes, the ATF were acting like jackbooted thugs during the Clinton years. The language was appropriate.

[Louis VI the Fat]

Sigh...

Louis is using one fundraising letter printed in 1995... yes, 1995... and later recanted to support his long debunked Gabby Giffords position.

And yes, the ATF were acting like jackbooted thugs during the Clinton years. The language was appropriate.

Neither Griffords nor Waco itself are the issue. These episodes merely serve to provide concrete, clear examples from a period dating from 1995 to 2011, serving to highlight a political process of decades.

It is about the escalating hardright political discourse. In particular pertaining to their portrayal of abuse of power by law enforcement agencies.

Anti-power abuse activism simply is is in itself commendable, but there is an overlap with militias-NRA-hardright extremism, which has engaged in a long standing project of paranoid discrediting of the federal government and its law enforcement.

The National Rifle Association has apologized for a recent fund-raising letter that described some federal agents as "jack-booted thugs."
"If anyone thought the intention was to paint all federal law-enforcement officials with the same broad brush, I'm sorry, and I apologize," LaPierre said yesterday.

The apology drew cautious approval from Attorney General Janet Reno today.
"I trust that the level of communication now will go forward in a thoughtful and respectful way," she said.

See, the thing is, the NRA always washes its hands off of its extreme wing, always claiming the central organisation had nothing to do with it, somewhat distancing itself from it, only for the entire show to happily continue, ever seeking to further radicalise public discourse.

1995: The letter, sent to the NRA's 3.5 million members in March over LaPierre's signature, referred to federal law-enforcement agents as "jack-booted government thugs" and said that "in Clinton's administration, if you have a badge, you have the government's go-ahead to harass, intimidate, even murder law-abiding citizens.

2009: The same paranoia, the same apocalyptic visions. The same imagery of besiegement by the federal government, a permanent Waco. A call to arms, to 'prepare for the storm'.

Spoiler Alert, click show to read: 

[Slyspy]

Insure your gun rights?

[Tellos Athenaios]

Yes, the NRA is just like other insurance companies: if you regularly pay the NRA a fee for their service, they have some way not to pay up when you come calling.

[Louis VI the Fat]

'Insure your gun rights', not insurance, but politically, in this example of 2009 against the crypto-Muslim manchurian candidate. Who'll turn America into a Marxist state by first making opposition impossible by taking your guns away. Leaving you defenseless. You have to arm yourself against it, or it'll be too late. This clash is the storm you need to prepare yourelf for. Preparation by organising a front against the storm, let's say, a stormfront.

Or something like that. Whatever it is they think they are doing in their militia drills.

[Hosakawa Tito]

This will eventually end up before the US Supreme Court and be overturned. It's a clear violation of our 4th Amendment rights. Seems the excuse that it will lessen the chance of violence may be a bit premature. Indiana Court Receives Death Threats.

[PanzerJaeger]

Neither Griffords nor Waco itself are the issue. These episodes merely serve to provide concrete, clear examples from a period dating from 1995 to 2011, serving to highlight a political process of decades.

And yet, the Giffords episode had absolutely nothing to do with the NRA or right wing politics in general, as we have been over countless times.

It is about the escalating hardright political discourse. In particular pertaining to their portrayal of abuse of power by law enforcement agencies.

Anti-power abuse activism simply is is in itself commendable, but there is an overlap with militias-NRA-hardright extremism, which has engaged in a long standing project of paranoid discrediting of the federal government and its law enforcement.

See, the thing is, the NRA always washes its hands off of its extreme wing, always claiming the central organisation had nothing to do with it, somewhat distancing itself from it, only for the entire show to happily continue, ever seeking to further radicalise public discourse.

1995: The letter, sent to the NRA's 3.5 million members in March over LaPierre's signature, referred to federal law-enforcement agents as "jack-booted government thugs" and said that "in Clinton's administration, if you have a badge, you have the government's go-ahead to harass, intimidate, even murder law-abiding citizens.

2009: The same paranoia, the same apocalyptic visions. The same imagery of besiegement by the federal government, a permanent Waco. A call to arms, to 'prepare for the storm'.

I really admire your ability to create a narrative, seemingly out of whole cloth. You can connect random points into a coherent storyline and then infuse said story with a sense of certainty that makes it sound not only legitimate, but old hat as well. It is quite an extraordinary talent; one which I have tried and failed to master to your level. However, in this instance, your knowledge of the American gun rights debate has let you down.

When Clinton was sworn in, he launched the greatest assault on gun rights in America in recent memory. He signed gun bans, sued gun manufacturers, and emboldened the ATF through new directives and new funding to treat gun owners essentially as criminals to be proven innocent instead of the other way around. Gun shops were raided with attack dogs and flash grenades on the slightest hint of impropriety, their owners never recompensed for the lost business and damage to their property regardless of their innocence. And individual gun owners were subjected to enhanced government scrutiny, harassed, and thrown in jail for minor mistakes in paperwork. Then came the tragedy of Waco, where Americans saw the ATF and their government use tanks to kill scores of women and children and destroy a community that was not threatening anyone - all over the ATF's heavy-handed approach to gun law enforcement.

This was all a bit of a shock for the NRA, which after years of patronage from both Republican and Democratic politicians was more of a social club than a proper special interest group. It was more focused on hosting shooting tournaments and gala dinners than actually fighting to preserve gun rights. And yes, for a brief period in the mid-90s, the group did engage in some limited anti-government rhetoric, culminating in the fundraising letter in response to the mass slaughter at Waco.

However, this is where your narrative of 'escalating hardright political discourse' falls apart, at least in relation to the NRA. The discourse has, in fact, de-escalated. The Oklahoma City Bombing and the changing political winds made sure of that. The group long ago abandoned any generalized anti-government rhetoric and instead focused on legitimate political and legal advocacy. In fact, the NRA is now partnered with many state and federal agencies to teach proper gun safety and operation classes.

In essence, you would have a point if we were living in, say, 1998, but at this late stage, the foundation of your narrative is ancient history - abandoned long ago.

Spoiler Alert, click show to read: 

You seem to be equating that poster with the 'jackbooted thugs' fundraising letter, which does not stand up to scrutiny. It's message is essentially "Join the NRA and/or give us money because the anti-gun party has now taken power and we can expect them to challenge gun rights", which is completely legitimate.

Show me an interpretation of the poster that makes any kind of generalized anti-government statement. I just don't see it.

'Insure your gun rights', not insurance, but politically, in this example of 2009 against the crypto-Muslim manchurian candidate. Who'll turn America into a Marxist state by first making opposition impossible by taking your guns away. Leaving you defenseless. You have to arm yourself against it, or it'll be too late. This clash is the storm you need to prepare yourelf for. Preparation by organising a front against the storm, let's say, a stormfront.

Or something like that. Whatever it is they think they are doing in their militia drills.

Indeed, people concerned with gun rights have no legitimate grounds for worrying about the election of Barack Obama. It's all just because they think he's a secret muslim.

[econ21]

Show me an interpretation of the poster that makes any kind of generalized anti-government statement. I just don't see it.

It's not just Louis who sees it, Panzer. "Prepare for the storm!" as a slogan would fit better on one of your militaria signatures than on political campaigning material for a peaceful mature democracy. I agree with Louis - that poster is so like the pre-Grifford cross-hairs material, it's uncanny. The dogwhistling is defeaning.

[Louis VI the Fat]

This was all a bit of a shock for the NRA, which after years of patronage from both Republican and Democratic politicians was more of a social club than a proper special interest group. It was more focused on hosting shooting tournaments and gala dinners than actually fighting to preserve gun rights. And yes, for a brief period in the mid-90s, the group did engage in some limited anti-government rhetoric, culminating in the fundraising letter in response to the mass slaughter at Waco.

However, this is where your narrative of 'escalating hardright political discourse' falls apart, at least in relation to the NRA. The discourse has, in fact, de-escalated.


In fact, the NRA is now partnered with many state and federal agencies to teach proper gun safety and operation classes.

We agree that gun advocacy movement radicalised in the early nineties. We disagree about later developments. The militia movement is well past its heyday of the nineties. But not, I think, because their thought has evaporated. On the contrary, I think their radical, extreme thought has managed to become mainstream. Indeed, that much of their concepts have driven a radicalisation of the right in general. The Teaparty in many ways is the spiritual heir.
The NRA has been one of the driving forces behind the radicalisation of the hardright, and of the shift to the hardright of rightwing political thought. The relationship is not the other way round. It is the NRA/gun lobby which feeds the hardright, not the hardright which feeds the gun movement.

It all culminated in the SC's rulings of 2008 and 2010, which constitute a breach with two centuries of thought, and which presented a complete victory for the pro-gun lobby. It is not the gun lobby which has been tamed, it is the gun lobby which has tamed the government. Personally, I find it a shocking development that 'the NRA is now partnered with many state and federal agencies to teach proper gun safety and operation classes'. De-escalation alright, but a de-escalation by way of the NRA taming the opposition, by disarming gun control.